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That '70s Show: Post-Kelo Eminent Domain Reform and the Administrative Law Revolution

This Essay contributes to a conference on Kelo v. City of New London sponsored by the Santa Clara University School of Law in February 2006. The Kelo decision has prompted many state legislatures to reconsider the organic statutes that enable local governments to use eminent domain to transfer land between private parties. This Essay suggests that these legislatures update these enabling statutes to the 1970s. Most state eminent-domain enabling statutes give localites extremely broad powers to decide when to condemn and transfer land. Courts typically read these statutes to trigger extremely deferential judicial review. During the 1960s and 1970s, in both state and federal case law, courts developed hybrid doctrines of administrative law to increase the scrutiny they apply to agency decisions in many areas of law, including spot zoning. These principles, however, have not really been applied to eminent domain, and particularly not to blight and economic-redevelopment actions.

The backlash against Kelo provides an opportune time to bring the '70s' administrative law revolution to eminent domain. Many of the complaints about local eminent-domain policy echo the public-choice concerns that fueled the '70s administrative-law revolution. If state legislatures update eminent-domain statutes to incorporate these principles of means-end scrutiny, they will probably make modest improvements in eminent-domain practice, by making decision making more rational and transparent, and less likely to be influenced unduly by special interests. These improvements are also politically realistic. The administrative-law doctrines in question do not categorically rule out any types of private land transfers. Moreover, because policy and legal elites are familiar with and largely accept the hybrid administrative-law doctrines in question, those doctrines should not threaten any of the major constituencies with an interest in eminent domain.